Monthly Archives: November 2013

This kit is for people involved in disputes under the Family Law Act 1975 (‘the Act’) about children and property. You may also wish to refer to our other family law publications.

WARNING: The information about children applies in all cases, but the information about property applies only to people who are or were married. People who are or were in domestic partnerships (de facto or same sex couples) cannot use the Act to resolve property disputes. For these matters get legal advice.

References are made to the Family Law Act 1975 and to the Federal Magistrates Act 1999 and the rules made under these acts. These Acts are regularly updated so it is extremely important that you obtain a copy of the most recent edition. Both acts can be viewed at a law library or on the internet.

This kit provides information only and is not a substitute for legal advice. If you are involved or are likely to be involved in court proceedings, you should get legal advice.

Service of a document is the process where you make sure that any person who is required to be given a copy of an application to the Court, or any other legal
document, is given it in a way which complies with the relevant legal rules.

In family law proceedings, this is often the process by which the other party is provided with a copy of your affidavit, your proposed Court Orders, or any other submissions you have made to the Court.

The relevant legal rules in family law proceedings prohibit you, as the litigant, from delivering these documents to the other party personally. Delivery must be done by another party, with proof of delivery required to satisfy the Court that the documents were delivered appropriately.

This document defines how the Court requires these documents to be delivered to the other parties.

The preparation of these guidelines reflects the increasing phenomenon of litigants appearing without legally qualified representation.

The courts have recognised the considerable increase in numbers of self-represented litigants. In 2000, the Family Court issued a Research Report, Litigants in Person in the Family Court of Australia, which highlighted the difficulties caused by increasing self-representation before that court. More recently, the Australian Institute of Judicial Administration issued a report, Litigants in Person Management Plans: Issues for Courts and Tribunals, which also explored the issue.

The need for guidelines such as these was brought home to me when talking with barristers, particularly in the family law jurisdiction, who noted how stressful it was to deal with litigants in person. I hoped that a preparation of guidelines such as these would enable members of the Bar to identify clearly the parameters within which they should work when dealing with self-represented litigants.

The guidelines have been prepared under the auspices of the NSW Bar Association’s Family Law Committee, but principally though a great deal of hard work by Brian Knox. Knox consulted widely in undertaking the exercise. In addition, the penultimate version of the guidelines was distributed for comment to the High Court, the Supreme Court of NSW, the NSW Industrial Relations Commission, the NSW Land and Environment Court, the District Court of NSW, the Compensation Court of NSW, the Local Court of NSW, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Service for comment. The Association is grateful to those courts for the input from them we
received in relation to the guidelines.

I commend a thorough reading of these guidelines to all members. I congratulate the Family Law Committee and, in particular, Brian Knox, on producing a work of outstanding assistance to the Bar.

The Council of the Law Society recognises the trend toward self-represented litigants appearing in courts and tribunals and that legal practitioners often face significant difficulties in dealing with them. This is occurring particularly in the Family Court where that court has pronounced guidelines for the benefit of its own judicial officers.

The Council also recognises similar difficulties for practitioners dealing with parties involved in non-litigious matters including conveyancing, probate and commercial matters who often act for themselves.

The New South Wales Bar Association’s Guidelines for barristers dealing with self-represented litigants available on the Bar Association’s website www.nswbar.asn. au (used and quoted with permission) are very useful for practitioners engaged in litigation. These guidelines are designed to assist practitioners deal not only with matters involving litigation but also with matters involving other than court or tribunal work.

Attached are information sheets for solicitors to send to the self-represented party on the other side of the matter.